ZAFAR MOHAMMED AGAINST THE ADVOCATE GENERAL FOR SCOTLAND [2017] ScotSC 23 (13 April 2017)

ZAFAR MOHAMMED AGAINST THE ADVOCATE GENERAL FOR SCOTLAND [2017] ScotSC 23 (13 April 2017)

The pursuer failed to establish the statutory excuse as he did not carry out or retain records of prescribed right to work checks, and the penalty was correctly calculated under the Code of Practice. The court cannot reduce the penalty based on general mitigation or ability to pay; only the statutory mitigating factors apply. The appeal must be dismissed as the Secretary of State's decision was sound in law and procedure.

Citation
[2017] ScotSC 23
Parties
Pursuer: Zafar Mohammed; Defender: The Advocate General for Scotland (on behalf of the Secretary of State for the Home Department)
Jurisdiction
Scotland
Judgment Date
13 April 2017
Procedural Posture
Summary Application (appeal Against Civil Penalty) / Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Civil Penalty for Illegal Employment, Right to Work Checks, Statutory Excuse Under Immigration, Asylum and Nationality Act 2006, Code of Practice for Civil Penalties, Appeal Procedure Under Section 17
Immigration Law Employment Law Administrative Law Civil Penalty for Illegal Employment Right to Work Checks Statutory Excuse Under Immigration, Asylum and Nationality Act 2006 Code of Practice for Civil Penalties Appeal Procedure Under Section 17

Case Brief

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Parties

Zafar Mohammed

Pursuer

The Advocate General for Scotland (on behalf of the Secretary of State for the Home Department)

Defender

Procedural Posture

Summary Application (appeal Against Civil Penalty) / Appeal Judgment

Legal Issues

  1. 1 Whether the pursuer is liable for a civil penalty for employing illegal workers under section 15 of the Immigration, Asylum and Nationality Act 2006
  2. 2 Whether the pursuer can rely on the statutory excuse for right to work checks
  3. 3 Whether the penalty amount was correctly calculated under the Code of Practice

Ratio Decidendi

The pursuer failed to establish the statutory excuse as he did not carry out or retain records of prescribed right to work checks, and the penalty was correctly calculated under the Code of Practice. The court cannot reduce the penalty based on general mitigation or ability to pay; only the statutory mitigating factors apply. The appeal must be dismissed as the Secretary of State's decision was sound in law and procedure.

Court Disposition

Appeal dismissed

Orders

  • Pursuer found liable in expenses (costs) of the appeal
  • Case certified as suitable for employment of junior counsel for the defender